Conspiring for Land

Lake of the Pines is an idyllic community located in the Sierra Gold Country, about 45 minutes from Sacramento. The centerpiece of the gated subdivision is a 230-acre lake and an 18-hole golf course. The home sites are located amidst gently rolling hills, ponderosa pines and groves of majestic oak trees. To many, it is paradise.

In spite of the community's wonderful attributes, trouble was lurking on the lake's edge. On April 12, 2003, Lake of the Pines was anything but paradise when the Nevada County Sheriff's department arrested 65-year-old William W. Weismann after he paid $5,000 the day before to an undercover deputy for the murder of his 43-year-old neighbor, Tom Wess Jr. Wess, a former sonar technician for the United States Navy, had moved to Lake of the Pines in 1998 to claim his piece of paradise. William and Mary Weismann had moved next door to the Wesses in August 2000.

Weismann's family and business associates were all shocked when they learned of his arrest on two counts of solicitation to commit murder and that he was held without

bail at Wayne Brown Correctional Facility. Weismann was a model citizen, the father of three children and six grandchildren, and had been married for 46 years to his wife, Mary. The gregarious entrepreneuer had enjoyed a successful career as a business owner in San Francisco. When he retired, he became involved with political and charity work.

The Nevada County Sheriff's Office learned about Weismann's plans after he contacted local real estate broker Lou Sans to make the "hit." Weismann believed Sans had connections to organized crime and that he did this "kind of work." On April 11, Weismann, Sans and an undercover Sacramento County Sheriff's Office narcotics detective, Scott Kolb, met to discuss the plot. The sheriff's department captured the meeting on tape, and Weismann's plans were prevented.

Although Lake of the Pines in western Nevada is considered paradise to some, trouble lurked on the lake's edge in April 2003.

What Started It

In 2000, only a few days after he had moved in next to the Wesses, Weismann claimed that Wess engaged in tactics including smashing car windows, using a blower to disrupt Weismann family picnics, posting menacing signs and installing cameras that focused directly into the Weismann's kitchen. Weismann claimed that soon after moving in, Wess told him: "It's an all-out war-you're going to be sorry you moved here."

A boundary survey disclosed that a boat dock being constructed by Wess at the time the Weismanns moved in was located partly on Weismann's property. When Wess learned of the conflict, he suggested a swap for a piece of land near his driveway. The Weismanns declined the offer and instead offered to help the Wesses relocate the dock. The Wesses declined that offer. Soon after, the Weismanns' car windows were broken and they found water in their gas tank.

Hostilities escalated as the months passed. Each side accused the other of multiple incidents of screaming and foul language. Lake of the Pines security police, along with the association's Environmental Control Committee and the Nevada County Sheriff's Office, were frequently called to the neighborhood as the conflicts escalated.

The boundary survey also revealed that a 15-foot-long rock planter encroached onto Weismann's property. In June 2001, Weismann commenced to remove the planter with a sledgehammer. Wess responded by hiring a lawyer who argued that the planter and boat dock were permissible under California law as they met the legal requirements for a prescriptive easement. (In California, a prescriptive easement can be perfected from usage over a five-year period.) The two neighbors continued fighting after the legal process was started.

What Continued It

Eventually, the Lake of the Pines Homeowners Association became involved in the dispute. In January 2002, Wess was accused of kicking in the panel of a pickup truck belonging to Lake of the Pines Property Owners Association Manager Ed Vitrano in a heated argument over plans for his property. According to Vitrano, Wess blamed the association for his problems.

Throughout the spring and summer of 2002, the dispute continued and in August 2002, Weismann was issued a misdemeanor battery charge for alledgedly punching Wess in the jaw during an altercation. Weismann was placed on probation.

By September 2002, the court had heard enough: it issued mutual restraining orders against both men, barring any contact or harassment. Unfortunately, this wasn't enough. In the following month, the Lake of the Pines homeowners association inflamed the dispute when it told Wess to move the dock back to his side of the line. The Wesses appealed the decision and a Nevada County Superior Court judge ruled that they were entitled to a prescriptive easement for the part of the pier that encroached onto the Weismanns' property. Judge Charles N. Henry wrote, "The court declines to determine the exact property line but encourages the parties to agree upon a survey." The court also had ruled that the planter could remain because of a prescriptive easement.

In January 2003, Weismann was sentenced to six months' probation for vandalizing a $6 chair on his neighbor's property. Additionally, the Wesses claimed the Weismanns unnecessarily contacted Lake of the Pines officials eight times between February 2002 and October 2002 on allegations ranging from barking dogs to the planting of trees.

According to The Union, a newspaper serving Western Nevada County, Calif. that continually covered the saga between Weismann and Wess, during another meeting, Ron Trimble, chairman of the association's environmental control committee informed Lisa Wess, Tom's wife, that they "needed to compromise" the prescriptive easement ordered by the court so that the Weismanns "wouldn't feel so bad." According to the Wess' attorney, the association should have left well enough alone as their perceived favoritism for the Weismanns only exacerbated the problem. As a result of the association's action, the Wesses raised the ante when they filed a civil lawsuit and sought punitive damages. Lisa Wess said, "This is absolutely insane that someone would go to this level because of a prescriptive easement. Basically, to be honest, we're still in shock. This is something you watch on television. We're baffled."

The Union covered the controversy in great detail. The paper reported that "the case hinges on a piece of California law that defines "˜prescriptive easements.' Deputy County Counsel Bill Heidelberger shed some light on the matter when he noted, ""˜Land used by a non-owner, such as a neighbor, can fall into easement status after five years, meaning the non-owner can continue to use it without the owner's permission. The user of the land should be given the right to continue using the land in that productive way. So the use defines the easement. Usually the issue involves a narrow swath, a fence or row of hedges and rarely falls under the tax collector's scrutiny. They can assess on easement rights, but as a general rule you never see it.'"

The easement law was anything but clear given the involvement of the homeowner's association. It was put to the test when it was challenged in the context of the association's protective covenants. When Superior Court Judge Charles N. Henry initially ruled in favor of the Wess family, he opined that the Lake of the Pines board had "abdicated" its authority. He added, "The Wess property is entitled to a prescriptive easement within the Weismann property to the extent of the original dock and rock planter wall area. The Wess' control and maintenance of that area, as well as that of their predecessors, has been undisputed for far more than five years."

The Wess' attorney effectively argued that the dispute over the planter area pre-dated both families in that the original owner of both properties first developed what became Wess' property, including the planter, and then developed what became Weismann's property.

Throughout the community, there was considerable discussion about the implications of these so-called "prescriptive easements." Many claimed the words "property easement" would trigger "the most incredible tales of neighbors at one another's throats over the placement of a fence, the trimming of a tree, the growing of shrubs." Another person told the paper that "It's a type of insanity that can lead to hiring an attorney, going to court, disputing the decision, and possible physical violence." When asked to comment on local land disputes, Nevada County Sheriff's Capt. Mike Hanson said, "Basically, we go out and keep the peace between warring neighbors until they settle it in court."

Weismann retained three attorneys to represent him including James Roberts, a San Jose attorney. In arguing for the release of his client, Attorney Roberts suggested that the sheriff's department could track his client's movements by GPS if the court would allow him to be bailed. Roberts argued that the GPS system was tamper-proof and that Weismann's whereabouts could easily be monitored by the probation department. The prosecution objected, arguing that Weismann could still pick up the phone to hire a hit man, no matter where he was.

Legal Endings

In October 2003, the Wesses dropped the civil lawsuit after receiving too many demands for documentation from Weismann's lawyers. In November 2003, Weismann pleaded "no contest" to two charges of soliciting to commit murder. Roberts said his client entered the no contest plea due to a variety of factors, including the cost of a lengthy trial and the fact that Weismann could serve an additional year in jail even before the trial began. The trial was canceled and a sentencing hearing was scheduled for Jan. 12, 2004 before Superior Court Judge Albert P. Dover. Weismann's attorney stated that his client could be released from jail in as little as two years. Weismann remained in custody at the Wayne Brown Correctional Facility where he was prohibited from any personal contact with visitors.

On the scheduled day of reckoning, Weismann's attorneys argued for leniency as he faced a maximum possible sentence of 11 years. After due consideration, he was sentenced to five years in state prison. His prison time was mitigated by factors such as Weismann's lack of a criminal history and the fact that the intended victim was uninjured. The sentence was additionally endorsed by the probation department.

Following the criminal trial, Wess and his wife filed a $5 million suit against the Lake of the Pines homeowners association, claiming that its failure to settle the long-standing property dispute contributed to the murder for hire plot. On April 14, 2004, Wess refiled his civil lawsuit against Weismann. Lou Sans, the real estate broker that Weismann had originally contacted to carry out the murder, also filed a complaint against Weismann seeking $250,000 plus compensation for undisclosed doctors' fees. His suit alleged Weismann's "conduct was intentional and malicious in that he acted in reckless disregard of the probability of causing (Sans) to suffer mental anguish and severe emotional and physical distress." Timothy Jensen, Sans' attorney, claimed Weismann was responsible for that distress because Weismann put Sans "in the center of the situation." In spite of the variety of allegations, on June 18, 2004, Nevada County Judge Ersel Edwards dismissed Wess' lawsuit against the homeowners association. In rendering his ruling, he wrote: "As a matter of law, defendants cannot be held liable for a third-party homeowner's solicitation of murder of plaintiff Thomas Wess." The magistrate added, "This is not a landlord tenant... situation. The issue here is not whether the defendants had a duty to protect plaintiffs from third-party criminal violence... There was no reason to believe that a property owner would hire someone to murder his neighbor."

Weismann is serving his five-year sentence at Folsom State Prison extension facility in Represa, Calif.

Sidebar: A Public Lesson

While the dispute worked its way through the legal system, the community, the courts and classrooms started paying more attention to the subject of property lines and easement disputes. According to The Union, there were a lot of "blurry property lines out there." A class on easements in the Nevada County Public Law Center drew upwards of 70 people and a waiting list for 40 more students was also filled. "It scares the heck out of me that there are this many people having easement problems," Public Law Center Legal Assistant Joan Connelley said. "I just hope mutual neighbors don't show up," she added. "They may have a difference of opinion." She noted that classes on conventional disputes such as landlord/tenant disputes, probate, small claims and basic legal research typically draw 20 to 50 people. According to Connelley, her office was regularly contacted on easement-related questions between neighbors.

Michael
Pallamary has been surveying real property since 1971. He is a founding member
of the Land Surveyors Advisory Council on Technical Standards (www.lsacts.com)
and he is the author of Lay of the Land – The History of Land Surveying in San Diego, available at www.authorhouse.com.

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